Legal Aid Reform: What it Means (Part 1)

The current Lord Chancellor and Justice Secretary, Chris Grayling, has been attempting to implement a number of legal aid reforms. The concept behind the scheme is primarily to meet government spending cuts. However, repeated communications from the Ministry of Justice have suggested an additional factor: the need to increase public confidence in the legal aid system. Debate has since raged between interested parties, with the legal community exerting pressure on the Lord Chancellor to rethink his reforms. Whilst such pressures had previously been met with rigid defiance, there have been some recent movements on key issues in the debate. The following article – the first of two parts – outlines the original proposals and latest amendments, and highlights the associated objections; some of which appear to have led Mr Grayling to amend his reforms.

Debate has since raged between interested parties, with the legal community exerting pressure on the Lord Chancellor to rethink his reforms.

The debate relevant to this article has centred on the proposals for increasing public confidence in the legal aid system. These proposals will be in addition to the cuts and reforms enacted as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) earlier this year.

The proposed reforms

On 6 September 2013, Mr Grayling announced plans to modify his proposals as a result of his consultation with the Law Society, Bar Council and other interested parties. A new consultation period has now been established to debate these changes, which are outlined by the Ministry of Justice in the ‘Transforming Legal Aid: Next Steps’ document. It is important that these latest reforms are read with reference to the previous consultation paper. Below is a paraphrased summary of the proposed reforms, which remained largely unchanged in Friday’s announcement.

1. Proposals for improving public confidence in the legal aid scheme:

Reforms to prison law to ensure legal aid is not available for matters which do not justify the use of public funds (i.e. treatment issues).

The introduction of a household disposable income threshold.

A residency test for civil legal aid claimants.

A reduction in the use of legal aid for weak judicial reviews.

An amendment to the civil merits test to prevent funding of any case with less than a 50 per cent chance of success.

Further proposals for reducing solicitor, barrister and expert fees in legal aid cases are outlined below. However, it is not the intention of this article to discuss these issues any further, as they do not form a key part of the ongoing debate.

2. Proposals for reducing civil litigation fees:

A reduction in solicitor representation fees in family public law cases by 10 per cent.

An alignment of fees for barristers and other advocates in non-family cases.

The removal of the 35 per cent uplift in provider legal aid fees in immigration and asylum appeals.

3. Proposals for reducing expert fees in civil, family and criminal proceedings:

A reduction in fees in civil, family and criminal cases by 20 per cent.

The need for reform

The Ministry of Justice has stated in its ‘Next Steps’ document that there is a need to ‘bear down on the cost of legal aid and ensure public confidence in the legal aid system’. This is based on the belief that this system cannot be ‘immune’ to government spending cuts, given that it ‘costs more per head than any other country, including those with similar legal and judicial traditions’. The decision has, therefore, been made to focus public funding on the people who are deemed to be most in need of assistance. The ‘Next Steps’ document states that:

unless the legal aid scheme is targeted at the people and cases where funding is most needed, it will not command public confidence or be credible.

However, both the proposals for the reform of judicial reviews and prison law and the implementation of a residence test have invoked a great deal of debate. Many have accused these proposals of being highly prejudicial towards vulnerable groups of claimants.

Judicial review

Previous proposals suggested that legal aid would only be available to parties for work done at the permission stage if that permission were granted. However, the new amendments now include a discretion for the Legal Aid Agency to provide payment in certain cases prior to the conclusion of a permission decision. There remain concerns regarding the use and efficacy of such a discretion. It is difficult to see how this would effectively readdress the ‘inequality of arms’ in such cases, especially when the Agency would be under pressure to keep costs down.

Many have accused the proposals of being highly prejudicial towards vulnerable groups of claimants.

A number of commentators have gone on to suggest that it is the legal, and not the financial, benefits which have driven the content of these reforms. One Crown Office Row’s ‘Human Rights Blog’ goes so far as to say that:

The removal of prison complaints from the scope of legal aid, the introduction of a residence test for eligibility and the proposal to limit access to legal aid for judicial review will all shield public authorities from legitimate challenge.

The judicial review process already implements a series of obstacles to potential claimants at the permission stage. Given that government departments necessarily have a vested interest in these cases, it is easy to see why such concerns have grown.

Residence testing

The residence test would involve lawyers having to decide whether or not their client is lawfully a resident in the UK. In addition, eligibility for legal aid would be limited to those who have been in the country for at least 12 months prior to their claim. This test has been accused of rendering those without ‘a strong connection to the UK’ ineligible for support, regardless of whether their actual case or cause has a connection ‘with the jurisdiction or…action by the government.’ Cynics may well point out that ‘a strong connection to the UK’ is quite a different test to that of residency. Indeed, it could almost be suggested that the two points need not coincide at all.

The government now appears to have softened its approach. In addition to children under 12 months, asylum seekers will now be exempt from the residence test until their case for asylum has concluded. Original proposals stated that asylum seekers would no longer be exempt from the residency test after this time. Following arguments made regarding the treatment of refugees under Article 16 of the 1951 UN Convention, this proposal has been amended so that successful claimants will be eligible for legal aid 12 months after their claim began. However, this decision has itself come under fire from groups such as the National Coalition of Anti-Deportation Campaigns. The NCADC has stated in its blog that this amendment could lead to a situation whereby:

a person with an overwhelmingly strong case for recognition as a refugee, recognised almost immediately, would be kept out of their rights under Article 16 for nearly a year subsequent to recognition, whereas a person who succeeds after numerous appeals might never cease to be eligible for legal aid.

Prisoners

Mr Grayling has suggested that prisoners should be excluded from court or access to legal aid when challenging decisions regarding their treatment, on ideological grounds. This decision has its basis in the belief that the current internal complaints mechanism is sufficient to deal with such challenges, and that public funding should not be used by offenders ‘simply to seek an easier life in another prison’. It is believed that this reform will ‘prevent around 11,000 cases each year being funded unnecessarily by criminal legal aid’.

Mr Grayling has suggested that prisoners should be excluded from court or access to legal aid when challenging decisions as to their treatment, on ideological grounds.

Unfortunately for Mr Grayling, organisations such as JUSTICE have continued to argue that this reform will undermine prisoners’ rights. It is stressed that these reforms would prevent challenges regarding the separation of female prisoners from their babies and the treatment of prisoners with mental health problems, for example. In addition, it is argued that this reliance on the internal complaints system ignores the fact that legal aid is only currently available to cases which cannot be solved by that mechanism.

Furthermore, JUSTICE has highlighted the fact that it is ‘the view of Her Majesty’s Inspector of Prisons and Probation that [the internal complaints mechanism] is not working’.

Financial effects

The concerns above have inevitably led to the suggestion that the reforms will only increase costly litigation regarding possible human rights violations. Further action may also be pursued given that such delegated legislation may conflict with the intentions of Parliament, rendering it incompatible with the stated purpose of the LASPO. Such actions are not difficult to imagine when one realises that these proposals would limit action in matters concerning:

challenges to family separation, removal of access to services to support independent living for people with disabilities and access to support for victims of domestic violence.

Summary

The Ministry of Justice must meet the one-third savings target set by government. The proposals for reform are designed to reduce the legal aid budget in proportion to this, whilst attempting to maintain the high standards of quality expected of the UK justice system. However, by pursuing a course which will limit access to justice, the government is setting a dangerous trend in underestimating the constitutional value of our legal aid system. Costs may need to be tightened, but there seems to be little thought as to the proportionality of such cuts. Concerns are growing regarding future miscarriages of justice, which could occur without the victim being able to effectively challenge or highlight such errors. Whilst recent amendments have softened the blow, they still constitute a major setback to the rule of law and constitutional freedoms which counteract the weight of state power.This article is the first of a two-part series. The second part will be published on Thursday 19th September.

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